Commonwealth v. Alger

The opinion was delivered at March term, 1853.

In proceeding to give judgment in the present case, the court are deeply impressed with the importance of the principles which it involves, and the magnitude and extent of the great public interests, and the importance and value of the private rights, directly or indirectly to be affected by it. It affects the. relative rights of the public and of individual proprietors, in the soil lying on tide waters, between high and low water mark, over which the sea ebbs and flows, in the ordinary action of the tides.

The defendant has been indicted for having erected and built a wharf over and beyond certain lines, described as the commissioners’ lines, into the harbor of Boston. The case comes before this court, upon a report of the judge of the municipal court, who, deeming the questions of law involved in the case doubtful and important, with the consent of the defendant, pursuant to the statute, reported the same for the consideration of this court. Probably the opinion was given pro forma, and a verdict taken by consent, with a view to present the whole question to this court.

The case thus presented, must depend on the construction, validity, and effect of the laws in question, establishing the lines of the harbor, as they affect public and private rights ; regarding, as they do, the rights of the public in tide waters and the arms of the sea, and the nature, extent, and limits of the rights of private proprietors in flats and sea-shores. *65The uncontested facts in the present case are, that the defendant was owner of land, bounded on a cove or arm of the sea, in which the tide ebbed and flowed, that he built the wharf complained of, on the flats before his said land, between high and low water mark, and within one hundred rods of his upland, but below the commissioners’ line as fixed by one of these statutes ; although it was so built as not to obstruct or impede navigation. This certainly presents the case most favorably for the defendant.

We may, perhaps, better embrace the several subjects involved in the inquiry, by considering,

First, What are the rights of owners of land, bounding on salt water, whom it is convenient to designate as riparian proprietors, to the flats over which the tide ebbs and flows, as such rights are settled and established by the laws of Massachusetts ; and,

Second, What are the just powers of the legislature to limit, control, or regulate the exercise and enjoyment of these rights.

I. By the common law of England, as it stood long before the emigration of our ancestors to this country and the settlement of the colony of Massachusetts, the title to the land or property in the soil, under the sea, and over which the tide waters ebbed and flowed, including flats, or the sea-shore, lying between high and low water mark, was in the king, as the representative of the sovereign power of the country. But it was held by a rule equally well settled, that this right of property was held by the king in trust, for public uses, established by ancient custom or regulated by law, the principal of which were for fishing and navigation. These uses were held to be public, not only for all the king’s subjects, but for foreigners, being subjects of states at peace with England, and coming to the ports and havens of England, with their ships and vessels for the purposes of trade and commerce.

The charter under which the colony was formed and settled —-first, that of James I. to the Plymouth company, and subsequently that of Charles I. in 1628, reciting an assignment of part of the territory formerly granted to the Plymouth company, being all that part of said territory, which after-*66wards constituted the colony of Massachusetts, to Sir Henry Roswell and his associates — did proceed to grant and confirm to Sir Henry Roswell and his associates all the said lands described, and every part and parcel thereof, and all the islands, rivers, ports, havens, waters, fishings, fishes, mines, minerals, jurisdictions, franchises, royalties, liberties, privileges, commodities, and premises whatsoever, with the appurtenances.

This charter was not merely a grant of property within the realm of England, but it contained provisions for the esta blishment of a separate dependent government under the allegiance of the king; and the government thereby constituted was invested with all the requisite civil and political powers to enable it to establish and govern the colony, and to make laws for that purpose, not repugnant to the laws of England. It was so understood and practised upon, and a species of representative government was soon ingrafted on it in practice, and so it continued, and the colony grew up and flourished under it, until the charter was formally revoked and annulled, by a decree of the English court of chancery, in 1685. This decree we may have occasion to allude to again hereafter. At present it is not necessary to trace the powers of the colonial government further. They were then regarded and have ever since been acknowledged to be ample and sufficient to grant and establish titles to land and to all territorial rights and privileges, and to govern and control all the internal concerns of the territory over which it was established. To the grants and acts of that government all titles to real property in Massachusetts, with their incidents and qualifications, are to be traced as their source.

Assuming that by the common law of England, as above stated, the right of riparian proprietors, bounding upon tide waters, extending to high water mark only, and assuming that the first settlers of Massachusetts regarded the law of England as their law, and governed themselves by it, it follows that the earliest grants of land bounding on tide waters would be to the high water line and not below it, and would have so remained, but for the colony ordinance, now to be considered.

*67This is commonly denominated the ordinance of 1641; but this date is probably a mistake. It is found in the Ancient Charters, 148, in connection with another on free fishing and fowling, and marked 1641, 47. That on free fishing, &c., is taken in terms from the “ Body of Liberties,” adopted and passed in 1641, leaving the date 1647 to apply to the other subject respecting ownership in coves, &c., about salt water. See an interesting work, Remarks on the Early Laws of Massachusetts Bay, by Francis C. Gray. 8 Mass. Hist. Soc. Coll. (3d series) 191, 215. This work contains, probably for the first time in print, a full copy of the “ Body of Liberties,” which, there is evidence to believe, were adopted and sanctioned by the colonial government in 1641, but were never printed entire with the colony laws, although many of them were embodied in terms in particular ordinances. But the date is quite immaterial, and the only purpose of making this explanation is to show why these two subjects, separate in their origin, were so connected together in the publication of the colony laws, that it seems necessary now to consider them together as one act.

The whole article, as it stands in the Ancient Charters and in the edition of the colony laws of 1660, is as follows:

“ Sect. 2. Every inhabitantwho is an householder shall have free fishing and fowling in any great ponds, bays, coves and rivers, so far as the sea ebbs and flows within the precincts of the town where they dwell, unless the freemen of the same town, or the general court, have otherwise appropriated them: provided, that no town shall appropriate to any particular person or persons, any great pond, containing more than ten acres of land, and that no man shall come upon another’s propriety without their leave, otherwise than as hereafter expressed.

“ The which clearly to determine; Sect. 3. It is declared, that in all creeks, coves, and other places about and upon salt water, where the sea ebbs and flows, the proprietor, or the land adjoining shall have propriety to the low water mark, where the sea doth not ebb above a hundred rods, and not more wheresoever it ebbs further: provided, that such proprietor *68shall not by this liberty have power to stop or hinder the passage of boats or other vessels, in or through any sea, creeks, or coves, to other men’s houses or lands.

“ Sect. 4. And for great ponds lying in common, though within the bounds of some town, it shall be free for any man to fish and fowl there, and may pass and repass on foot through any man’s propriety for that end, so they trespass not upon any man’s corn or meadow. [1641, 47.] ”

In analyzing this ordinance, which thus appears as one act, it appears that that part of it which relates to free fishing and fowling in all great ponds, and in creeks, coves, and rivers, where the sea ebbs and flows, was taken word for word from the “ Body of Liberties,” § 16, but no mention is made in that collection, of the rights of proprietors to low water mark. The latter provision, together with one declaring what should be deemed great ponds, was probably passed afterwards, in 1647. The subjects being connected together would, according to the usage of the time, be connected together as one article in the subsequent editions of the laws ; and this consideration shows the relation of these subjects to each other, and the fitness of connecting them together when published, for the information of the colonists.

The great purpose of the 16th article of the “ Body of Liberties” was to declare a great principle of public right, to abolish the forest laws, the game laws, and the laws designed to secure several and exclusive fisheries, and to make them all free. It expressly extended this right to places in which the tide ebbs and flows, then public domain, open to all. But when there afterwards came a provision, in effect declaring this territory, between high and low water mark, the private property of the riparian proprietor or owner-of the upland; this would seem to take away or abridge the right to the use of the shores, previously given; but this was accompanied by another, that, for fowling and fishing, persons may pass over another man’s property, of course including these shores thus made private property; this restores the public right to pass on foot over flats or places over which the sea ebbs and flows, so long as they are not actually reclaimed and converted into tillage or mowing land.

*69Such being the terms of the colony ordinance, and such the state and condition of the law when it was passed, and taking into consideration the condition and circumstances of the colony at the early period at which it was adopted the material question is, what was its legal effect and operation ?

In construing this ordinance heretofore, and applying it to particular cases, courts have frequently had occasion to remark upon the difficulties and embarrassments attending its construction. But these have referred mainly, not to the question, what estate the riparian proprietor takes in flats acknowledged to belong to his upland, but to difficulties in determining, from the generality of the terms of the ordinance, and peculiar local circumstances, what particular flats do belong to any particular parcel of upland, arising from the line and conformation of the shore on which they lie, whether straight or curved, whether curved inward or outward, direct or having points or promontories, or broad or narrow indentations, or arising from the formation of the flats over which the sea ebbs and flows, the direction of the current, and the relative position of the flats to the channel or deep water, beyond which the sea doth not ebb. Adams v. Frothingham, 3 Mass. 352; Rust v. Boston Mill Corporation, 6 Pick. 158; Valentine v. Piper, 22 Pick. 85; Sparhawk v. Bullard, 1 Met. 95; Piper v. Richardson, 9 Met. 155; Walker v. Boston & Maine Railroad, 3 Cush. 1, 22; Gray v. Deluce, 5 Cush. 9, 12. These are some of the principal cases in which these difficulties, which are intrinsic and unavoidable, have been alluded to; and they all arose, so far as this point was concerned, in applying the rale to particular cases, in order to ascertain whether the flats in controversy .did or did not belong to the particular parcel of upland for which they were claimed. We mention them for the purpose of laying them out of the case, as having no bearing upon the present question.

Talting the terms of the ordinance, with a long course of judicial decisions upon its construction, nearly if riot quite uniform, the court are of opinion that the antecedent law limiting the right of private proprietors of land bounding on *70the sea or salt water, to the line of high water, was changed by it; that, after this ordinance, the grant of lands, so situated, by the colonial government to individuals, or to proprietors of townships or companies of settlers, through whom they came to' individuals, vested in such grantees an estate in fee in the land lying between high and low water mark, subject to the restriction expressed in the proviso, “ so as not to stop or hinder the passage of boats and vessels,” &c., and subject to all such restraints and limitations of absolute dominion over it, in its use and appropriation, as other real estate is subject to, for the security and benefit of other proprietors, and of the public, in the enjoyment of their rights.

Before proceeding to state these limitations and exceptions, and for the better understanding of them, it may be useful to state the grounds of our opinion in regard to the rule itself. The language of the ordinance, though quaint and peculiar, as might be expected in so ancient a document, seems yet to be clear and intelligible. The word “propriety” is nearly, if not precisely,- equivalent to “property.” It imports not an easement, an incorporeal right, license, or privilege, but a jus in re, a real or proprietary title to, and interest in, the soil itself, in contradistinction to a usufruct, or an uncertain and precarious interest. A suggestion has somewhere been made, founded on the use of the word “ liberty” in the proviso — “ provided, that such proprietor shall not by this liberty have power to stop or hinder the passage of boats,” &c.— and thence drawing an inference, that the whole ordinance was intended to confer only a license or permission, liable to be revoked or withdrawn by the power which conferred it. But it is manifest that the word was not so used in this proviso. The term “liberties” was used as synonymous with laws, or legal rights founded and established by law. In the published edition of the colony ordinances, generally, they are denominated the Laws and Liberties. The code already alluded to as having been accepted and adopted in 1641, was called the “ Body of Liberties.” It is said by Hutchinson, that they were composed by Bev. Nathaniel Ward, of Ipswich, who, he adds, had been a minister in England, and formerly a student *71and practiser in the course of the common law. 2 Winthrop’s Journal, 55. They bear intrinsic evidence of having been drawn with great skill and legal accuracy, and have a constant reference to the established principles of the laws of England Yet they were called Liberties. Perhaps this was advisedly done, because the colonial government were acting under a charter which made them a corporation; and although it conferred on the governor and company large powers to govern the settlement which they might establish, yet it was always so as “ not to be repugnant to the laws of England.” It might seem to them less arrogant to set forth and declare their “ liberties” and rights in this form, than to enact in terms a body of laws, which might seem to indicate a disregard of the authority of the mother country. This use of the term “ liberty,” as synonymous with right, franchise, and privilege, is strictly conformable to the sense of the term as used in Magna Gharta, in the Declaration of Rights, and in English statutes, grants, and legal instruments. Jacob’s Law Diet. Tit. Liberty.

But, however this may be, we think it manifest, from the whole tenor of their legislation, that when the early settlers of Massachusetts, holding their lands under the freest and most liberal English tenure, that of tenants in fee simple in free and common socage, were making provision for granting and taking titles to real estate for themselves and their posterity, and when a certain valuable right and interest was annexed to and made part of such grants of estate by the government competent to impress such character upon it, they understood, both those who made and those who proceeded to take titles and settle the country under such grants, that the grantees acquired a legal right and vested interest in the soil, and not a mere permissive indulgence, or gratuitous license, given without consideration, and to be revoked and annulled at the pleasure of those who gave it.

We think this is confirmed by the use of the word “ propriety,” as used in two other places in the same ordinance. In the section immediately preceding the provision respecting flats, “ no man shall come upon another’s propriety without *72their leave,” &c., clearly meaning land. So, in a succeeding section, “ may pass and repass on foot through any man’s propriety, so they trespass not on any man’s corn or meadow.” Here it obviously means his real estate, his farm, including its most valuable part, his tillage and mowing lands. The word “ propriety” is used in the same sense by Lord Hale, and many other writers of that period, and is obviously a translation of the Latin word “proprietas” Latin being the language then chiefly used in legal writings and proceedings. Yet it is the term “ propriety,” in the enacting clause, which is called “ this liberty” in the proviso. We think it is therefore impossible, from this' casual use of the word liberty in the proviso, to infer that it was intended to give a gratuitous permission or license to the riparian proprietor to make a temporary or casual use of the flats adjoining his upland; and we think it was intended to declare a general rule of property, in regard to all real estate, bounded upon tide waters, annexing a new and additional right of soil in the shore, subject to the restrictions above mentioned.

And we believe that the course of judicial decision, so far as it can now be ascertained, tends to confirm the opinion, that, after the adoption of the colony ordinance, all riparian proprietors had a fee in the flats adjoining their land, over which tide waters ebbed and flowed, until severed by some deed or act of the owner, competent to convey or transfer real estate. We are not aware of any adjudication upon this subject prior to the revolution; and it is highly probable that the right was not drawn in question for many years, in the courts of justice. On the greater part of the coasts and shores, the bays and inlets of salt water, the right was for a long period, and in regard to many of them still is, of no value, and of course would not be the subject of litigation. It is only in and near populous towns, and frequented ports and harbors, and in consequence of the exigencies of navigation and commerce, that the lands flowed by the tides become useful and valuable. In Boston, which was for a long time the principal port of the colony, navigation was confined mostly to the cove lying on the easterly side of the town, *73lying on a circular shore, and in regard to this, an arrangement was made by a mutual agreement, between the colonial government and the riparian proprietors within the cove in 1674, by which a cross wharf was erected on the outside from one point of this circular cove to the other, to be used partly for the purposes of commerce, but mainly as a barricade to serve as a defence against an apprehended attack of the Dutch from Manhadoes; a bandeado, in the spirited language of the time, to play guns upon. Conventio legem vincit; this compact fixed the limits of the rights of the proprietors to flats within the cove, and left no room for question. Whatever force and effect may have since been attributed to the barricado agreement, it was long regarded as of binding force, regulating the rights of riparian proprietors within the cove It is perhaps now of no other importance, than as it accounts for the fact, that there was no litigation or judicial decision, in regard to the rights of riparian proprietors, in that part of the principal port in which they would have been most likely to occur.

Since lands of this description have become valuable, the subject has often been brought before the courts, but as there were no regular reports published prior to 1804, it is difficult to trace the law to an earlier time, except as it was declared by those judges and jurists, whose memory and traditional knowledge extended to an anterior period. We will cite a few of them.

Mr. Sullivan, in his History of Land Titles in Massachusetts, published in 1801, alludes to the subject, cites the colony ordinance, and treats it as having effected a great change of the law of Massachusetts, in regard to the right of property m the soil in navigable waters, where the sea ebbs and flows. Sullivan, 284. Mr. Dane, who may be considered as a lawyer of the old school, and who had devoted many years of his life to the study and exposition of the laws of Massachusetts, treats this subject more at large. 2 Dane Ab. 694. After citing the usual authorities to show, that by the common law the property in the soil of land over which the tide ebbs and flows was in the king, he proceeds to state that the statute *74laws in this state have made several material alterations in some of these subjects. He cites the colony ordinance at large, and says this old and important law is now constantly practised upon, in regard to harbors, beaches, flats-grounds, and wherever the tide ebbs and flows, as well respecting fishing and flowing, as the right of soil. And he adds, many actions have depended on this .law, and instances real actions to recover the soil or ground where the tide ebbs and flows, whenever taken possession of and claimed by another. This is perhaps the best evidence now to be obtained of what the law was, prior to the regular publication of reports, showing that the rule of the colony ordinance was recognized and practised upon, extending the right of riparian proprietors to low water mark, which at common law they had to ordinary high water mark, which was a title in fee. Mr. Dane cites two cases, in which this rule was considered and applied; Commonwealth v. Pierce, S. J. C., Essex, November, 1790; Commonwealth v. Crowninshield, S. J. C., Essex, November, 1796.

The first reported case on this subject is that of Austin v. Carter, 1 Mass. 231. Though the report is exceedingly brief, which is much to be regretted, yet the judgment is quite decisive on several points: First, that the owner of land bounding on tide waters, has property in the flats to low water mark, and may maintain trespass guare clausum, against any one who shall enter and cut down piles placed there by the owmer, with a view to build a wharf, or otherwise inclose the flats: Second, that although the owner has a right to build on his flats and exclude all mankind, yet until he does so build, or erect some structure which may exclude others, and whilst the tide is up, and the land covered with salt water, every townsman, and every other person, has a right to pass through and over the same, with boats or vessels, and commits no trespass upon the owner in doing so.

Upon this last point, we may as well remark here, that the right of the riparian proprietor, under the ordinance, has always been held subject to this rule; that until he shall build upon his flats or inclose them, and whilst they are covered *75with the sea, all other persons have the right to use them fot the ordinary purposes of navigation. This probably results from the general and acknowledged right of the public to navigate the sea and all its arms and branches; and so long as the owner of the flats permits the sea to flow over them, the individual right of property in the soil beneath does not restrain or abridge the public right to the appropriate use of them.

Mr. Dane intimates, (2 Dane Ab. 700,) that the case of Austin v. Carter goes too far, in stating that the riparian proprietor has an absolute right under the colony law, so to build to low water mark and exclude all mankind. But it is to be considered, that the court gave no opinion; affirming only in general terms the doctrine advanced by the defendant’s counsel. No qualification, therefore, to the general rale was expressed, not even the limitation to one hundred rods, or the condition not to hinder the passage of boats and vessels, &c. And further, this judgment must be construed according to the subject matter, which was, the right to flats then in controversy, belonging to land adjoining Charles River, at or near the old ferry way, between Charlestown and Boston, where the river was broad, and where the channel or deep part of the river was quite wide, and afforded abundant room for any boats or vessels to pass along the river and to other men’s houses and lands. Had the court been giving an opinion in regard to flats differently situated, there is no reason to doubt that they would have qualified it by stating the proper conditions and limitations. The court were unanimous, and consisted of Dana, C. J., Strong, Sewall, Sedgwick, and Thatcher, Js.

The next case to which we would refer is that of Storer v. Freeman, 6 Mass. 435. It is to be remarked that this case concerned a parcel of flats, lying between hi!gh and low water mark, at Cape Elizabeth, in the county of Cumberland, Maine, and that the province of Maine was not within the jurisdiction of the colony of Massachusetts when the ordinance was passed, so as to be directly bound by its legal enactments. This circumstance is not taken notice of by the court, nor is *76it material; for it may as well be remarked here as any where else, that the rule or principle of the colony ordinance, having been adopted and practised on in every part of the province of Massachusetts, after the union of the colony of Massachusetts with Plymouth and Maine, and also with Nantucket and Martha’s Vineyard, by the province charter of 1692, the same rule, extending riparian ownership to low water mark, is now held to extend to all these territories. Codman v. Winslow, 10 Mass. 146 ; Barker v. Bates, 13 Pick. 255 ; Mayhew v. Norton, 17 Pick. 357; Lapish v. Bangor Bank, 8 Greenl. 85. It has also been held that the same rules apply as well to the shores of the open sea as to those of coves, creeks, and arms of the sea. Barker v. Bates, 13 Pick. 255; Sale v. Pratt, 19 Pick. 191.

It was remarked by the court in the case of Storer v. Freeman, that the colony ordinance was annulled with the charter, by the authority of which it was made. The strict correctness of this remark may perhaps be doubted, even though the decree in chancery of 1685, by which the charter was adjudged forfeited, were regular and valid, which we believe has never been admitted here. In general, a revolution or change in the form of political government does not annul the municipal laws regulating property, or divest rights of property acquired under them. If the remark was intended only to intimate that the jus publicum, the right of governing, controlling, and regulating the sea and sea-shores, and the powers and prerogatives of the king for the protection of public rights, which had been transferred to the colonial government by the charter, would be taken away by a valid revocation of that charter, without affecting private rights already vested, it may be admitted to be correct. But, however that may be, it has become a mere question of speculation, and ceased to be of any practical importance, even within the old territory of the colony of Massachusetts, because the same rights and powers, and all doings under the' charter, were revived and confirmed by the province charter; and by the very first act under the provincial government, making a temporary pro. vision; and by a subsequent act, passed soon after, continuing *77the former in force and making it perpetual, it was declared that all the local laws made by the late governor and company of Massachusetts Bay and New Plymouth, do remain and continue in force in the Respective places for which they were made. Ancient Charters, 213, 229.

The case of Storer v. Freeman is of high authority as a precedent, and has a strong bearing upon the question we are discussing. The opinion was given by Parsons, C. J. It had been argued that the ordinance had annexed the flats to the upland rather as an appurtenance than as an extension of the limits of the owner’s land. The court first state, that, by the common law of England, the owner of land bounded on the sea, or on any arm of the sea where the tide ebbed and flowed, could not by such boundary hold any land below the ordinary high water mark, for all the land below belonged of common right to the king; but the subject might claim the land below high water mark against the Icing, either by grant or prescription. They then add, that to induce persons to erect wharves below high water mark, which were necessary to .the purposes of commerce, the common law of England was altered by an ordinance providing that the proprietor of land adjoining on the sea or salt water, shall hold to low water mark, where the tide does not ebb and flow more than one hundred rods ; but. that the rights of others to convenient ways are saved. This case decides that the flats are held by the riparian proprietor, subject to an easement for a convenient right of way; that he takes them as land, and not as an incorporeal right; and that whether they pass or not by a particular conveyance, depends on the question, whether they are included in the description so as to pass as parcel. The same points were decided in another case which soon followed. Codman v. Winslow, 10 Mass. 146.

The next case to which we would refer, is that of Commonwealth v. Charlestown, 1 Pick. 180. The whole of this case is very instructive. Several points are decided, which we will state without stating the case at large.

1. That by the common law the right of the soil of the shore between the high and low water mark, and all arms of *78the sea, coves, and creeks, where the tide ebbs and flows, are the property of the sovereign, unless appropriated to some subject by grant, or prescription which presupposes a grant.

2. That by the letters patent and charter of Charles I., all right in the waters and shores of the sea was transferred to the company who undertook the settlement of the colony of Massachusetts, who were thereby made a body politic, giving them absolute property in the land within the limits of the charter, the power of making laws for the government of the colony, and full dominion, over all the ports, rivers, creeks, and havens, in as full and ample a manner as they were before held by the crown of England; and that by these charters, the acceptance of them, and proceedings under them, the people of the colony, in their politic capacity, succeeded to all the territorial rights, franchises, and immunities, which had ever belonged to the sovereign power of the parent country.

8. That among the earliest acts of legislation was an exer ■ cise of sovereignty with respect to the shore or flats of coves, creeks, &c., which abounded all over the coast. The desire and necessity for wharves, quays, and piers, were soon felt by individuals and the community, and to encourage them, the government transferred its property in the shore of all creeks, coves, and other places upon the salt water where the sea ebbs and flows, giving to the proprietor of the land adjoining, the property of the soil to low water, not exceeding one hundred rods. This was a grant of so much of the shore, &c.

4. That the exceptions and provisions in this ordinance show clearly that the principles of the common law, relating to this kind of property, were well understood by the colonial legislature. By this grant of the property, those who acquired it were restricted from such a use of it as would impair the public right of passing over the water in boats and other vessels, through any sea, creeks, or coves, to other men’s houses or o lands. The result is that the ordinance made no alteration in the use of places there described, while they are covered with water; and further, that the proprietor of the flats can lawfully erect nothing upon them which will obstruct or hinder such passage, though he may build wharves towards the sea, if he *79do not thereby straiten or interrupt the passage over the water so as to constitute a public nuisance.

5. That none but the sovereign power can authorize an interruption of such passages, because it has power to judge of what the public convenience requires, and may enact conditions to preserve the natural passages; that all navigable rivers are public property, for the use of all the citizens; and that there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.

The views, we believe, that the courts of this state have constantly taken of the construction of the colony ordinance, are these1: That it vested the property of the flats in the owner of the upland in fee, in the nature of a grant; but that it was to be held subject to a general right of the public for navigation until built upon or inclosed, and subject also to the reservation that it should not be.built upon or inclosed in such manner as to impede the public right of way over it for boats and vessels. We are not aware that this has been drawn in question by any judicial decision; but on the contrary we think that this construction has been uniformly recognized, adopted, and applied, as occasion has required. Instead, therefore, of pursuing this analysis of the cases further, we will enumerate some of the most important of them, coming down to the latest period. Rust v. Boston Mill Corporation, 6 Pick. 158; Valentine v. Piper, 22 Pick. 85; Gray v. Bartlett, 20 Pick. 186; Sparhawk v. Bullard, 1 Met. 95; Ashby v. Eastern Railroad, 5 Met. 368; Piper v. Richardson, 9 Met. 155; Drake v. Curtis, 1 Cush. 395; Walker v. Boston & Maine Railroad, 3 Cush. 1; Gray v. Deluce, 5 Cush. 9.

The same principles have been affirmed by a series of decisions of the supreme court of Maine, and the circuit court of the United States in Maine, holding that the principles of the Massachusetts colony ordinance have been established b;y usage and adoption, and long held as the common law of thai state. Knox v. Pickering, 7 Greenl. 106; Dunlap v. Stetson, 4 Mason, 349, 366; Lapish v. Bangor Bank, 8 Greenl. 85; Emerson v. Taylor, 9 Greenl. 42; Deering v. Long Wharf, 12 Shep. 51, 64.

*80There is another view of the subject, leading to the same result, arising from the established remedies for any injury or damage done to this species of property. The following cases, though they do not bear directly upon the main question, do, by necessary implication, involve the conclusion, that flats, are deemed to be land and real estate, and not an appurtenance or incorporeal right.

1. That a writ of entry—a remedy exclusively appropriated to the recovery of lands—will lie for flats, though uninclosed by the owner, if he be disseised of them, as he may be by actual possession of them being taken by another.

2. That trespass quare clausum fregit lies for any injury done to the owner’s lawful possession of flats — a remedy wholly inapplicable to the disturbance of an easement or incorporeal right.

3. That flats will not pass as appurtenant to land, because it is an established rule that land cannot pass as appurtenant 'to land, although it may pass as appurtenant to a messuage; but it would pass, although land, as appurtenant to a wharf.* Doane v. Broad Street Association, 6 Mass. 332.

4. That the upland and flats may be severed by the owner, at his pleasure; he may aliene the flats or any part of them without the upland, or the upland without the flats; and it will depend on the descriptive terms of the conveyance, embracing or excluding them, whether any and what part of them will pass. Lufkin v. Haskell, 3 Pick. 356.

We have thought it proper to examine, with some care, the foundation, on which the right of property in land, situated between high and low water mark in Massachusetts, rests, though it has not been much contested in reference to these harbor lines, except indirectly, and in vague and general terms. And we think it is entirely clear that, since the adoption of the colony ordinance, every grant of land, bounding upon the *81sea, or any creek, cove, or arm of the sea, and either in terms including flats to low water mark, or bounding the land granted on the sea or salt water, with no terms limiting or restraining the operation of the grant, and where the land and flats have, not been severed by any intervening conveyance, has had the legal effect to pass an estate in fee to the grantee, subject to a limited right of way for boats and vessels. We have seen that the entire right of property in the soil was granted by the charter to the colonists, with a full power of disposal, and that the colonial government was clothed with so much of the royal prerogative and power, as was necessary to maintain and regulate all public rights and immunities in the same. If land so situated had, previously to the ordinance, been conveyed by the government, to companies of proprietors or individuals, the act was in the nature of a grant of the flats to such prior grantees. It is said that it was not of itself a grant, but a general law affecting the character of property. Be it so. It was an authoritative declaration of owners, having a full right of property and power of disposal, annexing additional land to that previously granted, to hold in fee, subject to a reserved easement; and, if not strictly a grant, it partook of most of the characteristics of a grant, and could not be revoked by the power that gave it. In regard to all grants made by the government after the ordinance, the terms of the grant, bounding the lands granted upon the sea, or arm of the sea, or places where the tide ebbed and flowed, would, ex vi termini, carry a fee to low water mark, or one hundred rods; so that in one or the other alternative, this ordinance must govern and control the shore rights of riparian proprietors in every part of the commonwealth.

II. Assuming, then, that the defendant was owner in fee of the soil and flats upon which the wharf in question was built, it becomes necessary to inquire whether it was competent for the legislature to pass the acts establishing the harbor lines, and what is the legal validity and effect of those acts.

There is now no occasion and no ground to deny or question the full and sovereign power of the commonwealth, within its *82limits, by legislative acts, to exercise dominion over the sea and the shores of the sea, and all its arms and branches, and the lands under them, and all other lands flowed by tide water, subject to the rights of riparian ownership. Whether any portion of this sovereignty remained in the British crown after the colonial and provincial charters were granted, it is now immaterial to inquire; for it is quite certain that the entire right of property in the soil was granted to the colonists in their aggregate capacity, and if any power remained in the crown, it was that of dominion and regulation of the public right, and this was wholly determined by the Declaration of Independence, acknowledged and acceded to by the treaty of peace, sanctioned by an act of parliament. This right of dominion and controlling power over the sea and its coasts, shores, and tide waters, when relinquished by the parent country, must vest somewhere; and, as between the several states, and the United States, whatever may have been the doubts on the subject, it is settled that it vested in the several states, in their sovereign capacity, respectively, and was not transferred to the United States by the adoption of the constitution intended to form a more perfect union. Special jurisdiction has been from time to time vested in the general government for special purposes, but the general jurisdiction remains with the severál states, subject, however, to such regulations as congress may make in the exercise of their admitted powers to regulate foreign commerce, and commerce among the states. Such is the principle determined by the supreme court of the United States, the ultimate tribunal to decide questions of this kind. New Orleans v. The United States, 10 Pet. 662, 737; Pollard v. Hagan, 3 How. 212.

But the power of the commonwealth, by the legislature, over the sea, its shores, bays, and coves, and all tide waters, is not limited, like that of the crown at common law. By the common law, the king was held to be the owner and proprietor of the soil under the sea, its shores, and all tide waters, and as such could grant the right of property therein to a subject; though this was not usually done without the previous execution and return of a writ of ad quod damnum, to ascertain *83whether such grant would cause any injury to any public right. But it was further held, at common law, that, beyond a right of property, the king’s prerogative extended to the dominion and control of the shores of the sea, as a power held in trust for the security and protection of the public rights in the navigation and fisheries; that these were among the regalia or incidents of sovereignty, which could not be alienated by a royal grant alone, or held by a subject. But we believe it was never doubted that the British parliament, exercising all the powers of dominion and sovereignty, had full authority to regulate, protect, and secure all public rights; and it is under this áuthority, we suppose, that acts have often been passed regulating ports, harbors, and tide waters. Lowe v. Govett, 3 B. & Ad. 863; The King v. Montague, 4 B. & C. 598; Attorney General v. Burridge, and Same v. Parmeter, 10 Price, 350, 378, 412.

Supposing, then, that the commonwealth does hold all the power which exists anywhere, to regulate and dispose of the sea-shores, and tide waters, and all lands under them, and all public rights connected with them, whether this power be traced to the right of property or right of sovereignty as its principal source, it must be regarded as held in trust for the best interest of the public, for commerce and navigation, and for all the legitimate and appropriate uses to which it may be made subservient. Assuming, then, that the commonwealth does hold this power, within certain limits, the question recurs, whether the acts under consideration are within its just and legitimate exercise.

In considering this question, it becomes necessary to inquire, and ascertain as far as practicable, the nature and character of the laws in question, and the object which the legislature had in view in passing them. The first act, though not the one upon which this prosecution is founded, was passed on the 19th of April, 1837, St. 1837, c. 229, and is entitled “ an act to preserve the harbor of Boston, and to prevent encroachments therein.” It establishes a line by local objects designated along the easterly and northerly side of the city, from the lower South Boston Free Bridge, around to a point *84above Charles River Bridge, and provides, § 3, that no wharf, pier, or building, or encumbrance of any kind, shall ever hereafter be extended beyond the said line, into or over the tide water of